Eberhardt v. Frasca

—In an action to recover damages for slander, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Oshrin, J.), entered June 23, 2000, which, upon an order of the same court dated May 23, 2000, determining that the defendant is entitled to recover $15,000 on his counterclaim for intentional infliction of emotional distress and $7,500 on his counterclaim for costs pursuant to 22 NYCRR 130-1.1, is in favor of the defendant and against him in the principal sum of $22,500. 749 Ordered that the judgment is modified, on the law, by deleting from the decretal paragraph thereof the principal sum of $22,500 and substituting therefor the principal sum of $7,500; as so modified, the judgment is affirmed, with costs, and the order dated May 23, 2000, is modified accordingly. The Supreme Court properly awarded the defendant costs in the sum of $7,500 based upon the plaintiffs failure to cooperate with discovery orders. A court may, in its discretion, award or impose costs for frivolous conduct (see, CPLR 3215 [a]; 22 NYCRR 130-1.1 [a]; First Deposit Natl. Bank v Van Allen, 277 AD2d 858; Matter of Ashley v Delarm, 234 AD2d 736). However, the defendant failed to state a cause of action on his counterclaim for intentional infliction of emotional distress (see, Fischer v Maloney, 43 NY2d 553, 557). Accordingly, the award of damages on that counterclaim must be vacated. Krausman, J. P., McGinity, Adams and Crane, JJ., concur.